In conflict resolution, there are hard negotiators and soft negotiators. Hard negotiators are the ones who take very aggressive positions, demanding sometimes more than they’d get on their best day in court, and making only minor concessions as the mediation progresses. Hard negotiators often refuse to explain the reasoning behind their positions, and they rebuff discussion of any fairness standard in determining the possible terms of an agreement. They don’t discuss their BATNA (Best Alternative to a Negotiated Agreement), at least not with the other parties or, in most cases, the mediator. T ..read more

Mediators and advocates often say at some point during mediation something like the following: A good settlement is one where everyone is equally unhappy. I admit I used to say this in my mediation openings. But that was before I became a student of mediation, and before I began to study the works of William Ury, author of Getting Past No and co-author of Getting To Yes. Now, instead, I say in my mediation openings that a good settlement is one that is better than the party’s BATNA. BATNA stands for Best Alternative To a Negotiated Settlement. It is what you need to know in order to evaluate a ..read more

You have to love an appellate decision that starts off like this: “The legal historian Frederic William Maitland is reputed to have said, ‘The law is a seamless web.’ He didn’t.” Breslin v. Breslin, 62 Cal. App. 5th 801 (Cal. Ct. App. 2021)(footnote omitted). For a copy of the decision: https://casetext.com/case/breslin-v-breslin-3 The Breslin case is alarming. In Breslin, a decedent, Don Kirshner (not the Rock Concert guy, who died in Florida with his own messy estate), left an estate valued at $3 to $4 million, no surviving spouse or children, and a bungled estate plan. The charities were na ..read more

In around 2008, I became certified as a “Circuit Civil Mediator” by the Florida Supreme Court, intending for mediation to be an additional component to my trust and estates litigation practice. In the years since, I have successfully mediated cases in Florida and other states for very many trust and estate colleagues and their clients. As my mediation practice has grown, my interest in “getting deep” into mediation dynamics has grown with it. To satisfy my need to develop real mediation skill, I have engaged in a course of self-study, immersing myself in books, articles, blogs, videos, courses ..read more